[Editor’s Note:
This is part of the joint I-CONnect/IACL-AIDC
Blog symposium on “towering judges,” which emerged from a conference held
earlier this year at The Chinese University of Hong Kong, organized by
Professors Rehan Abeyratne (CUHK) and Iddo Porat (CLB). The authors in this
post formed part of a panel on “Towering Judges in New/Mixed Constitutions.”
The introduction to the joint symposium can be found here.
Parts of this blog post are extracted from the paper
presented by the authors at the conference and to be published with the other
papers from it.]

—Jaclyn
L Neo, National University of Singapore, and Kevin
YL Tan, National University of Singapore and Nanyang Technological
University

Judges can only ‘tower’ in environs where appropriate
opportunities exist for them to do so. For that reason, they are more likely to
be found in common law than civil law jurisdictions. They are also more likely
to emerge in younger jurisdictions where the law is less settled or where local
conditions require a significant departure from the established judicial
canons. On that score, a towering judge should have emerged in Singapore a long
time ago. A small but new jurisdiction that attained its independence in 1963,
no major judicial figure, much less a towering judge was to appear until Chan
Sek Keong was appointed third Chief Justice of Singapore in 2006.

Towering judges don’t always look the part. A small, shy, retiring man, Chan looks much more like an erudite academic than the judicial giant he is. Yet, it was he who single-handedly transformed the jurisprudence of public law in Singapore through his judgments and leadership of the court. Under his leadership, public law – which had, for half a century been treated as a marginal if inconvenient subject – moved to the mainstream of judicial discourse. Chan’s significance as a towering judge may be reflected in three ways.

First, he pushed for greater
openness towards ‘nuanced engagement with academic ideas, foreign cases and
international law’[1] and the abandonment of the ‘four walls’
approach to constitutional interpretation championed by the earlier court.[2] Second, a shift in the quality of the
judgments towards ‘more elaborated reason-giving’[3] and with ‘greater
focus on the intrinsic values of the law, such as matters of procedural
fairness, and the procedural aspects of the Rule of Law and the Separation of
Powers.’[4] Third, an openly welcome
attitude towards public law cases. While Chan acknowledged his court’s
green-light approach[5]
to public law, he repeatedly emphasized the crucial function of judicial review
in ensuring good governance. ‘The Rule of Law’, Chan reiterated in his most
oft-cited extra-judicial lecture, ‘requires the court to determine whether any
public authority has crossed the line of legality’.[6] His message was clear:
lawyers bringing judicial review applications are playing a legitimate
professional role in the constitutional state.

Despite Chan’s contributions, his
‘toweringness’ may well be considered limited by some matrices. His leadership
of the court was quiet and solid, but no laws were struck down as
unconstitutional, nor were there flamboyant clashes with the government. His
approach to constitutional law may be characterised as judicially minimalist or
incrementalist. At first blush, judicial minimalism contradicts the idea of a
‘towering figure’, or ‘heroic judge’ who are willing to invoke ‘an ambitious
understanding of the Constitution to invalidate the decisions’ of the
government.[7] Indeed, the minimalist
judge has been described in counter-opposition to the ‘heroic vision of
judging’, where judges see the role of the judiciary as ‘a large and
potentially transformative’.[8] However, we argue that the
heroic judge may be ‘towering’ exactly because he understands the limits of his
role but is yet able to strategically expand democratic and constitutional
space through a minimalist approach. This minimalist strategy may be necessary
in jurisdictions where the scope for expansive judicial decision-making is
limited. Thus, the minimalist judge who articulates broad abstract principles,
while concurrently adopting narrow ratios,
may be acting heroically.

This means that a towering judge
must be evaluated against the conditions in which he operates. Towering is not
only a relational concept, as Mark Tushnet argues in his post in this joint
symposium, or a matter of influence, as Rosalind Dixon highlights in her contribution, but also a
contextualized concept. When Chan became Chief Justice in 2006, the Singapore’s
constitutional law was poorly developed. Judgments were brief and often did not
offer detailed reasons nor engage with foundational questions about the
underlying norms of the constitution.

Granted, the policy space available
to judges is extremely limited[9] because Singapore has been
governed by the same political party since 1959 (when it was a self-governing
colony) who commands an almost hegemonic majority (since 1968). The
Constitution is easily amended as are all other laws, and in this regard, the
policy space for the judiciary is extremely limited. Thus, any effort to build
a normative basis for constitutional law through incremental judicial
minimalism, is itself a heroic endeavour.

One common justification for
minimalism is that it best preserves the court’s legitimacy within the
constitutional framework. Minimalism in judicial decision-making arises from
court’s interdependent relationship with the political branches of government.
Indeed, judicial minimalism may well be necessary if there is to be
constructive constitutional dialogue between the court and the elected
government. Chan’s incremental approach has led to the articulation of key
constitutional principles – separation of powers, rule of law, and even the
basic structure doctrine – as a part of Singapore’s constitutional
jurisprudence.

Broadly speaking, Heroes are willing to invoke the Constitution to invalidate state and federal legislation; Soldiers defer to the actions of the political branches; Burkeans favour only incremental change; and Mutes prefer not to decide difficult questions.[10]

Like all
typologies, Sunstein’s provides useful categorical insights into the
personalities and predilections of judges, but do not really describe any
particular real-life judge. The same judge could be a hero in one case, a
Burkean in another and a mute in a third. We have cast Chan as a minimalist, a
judge who prefers ‘small, cautious steps, building incrementally on the
decisions and practices of the past … and narrow rulings, focused on the facts
of particular cases.’[11]
However, as Sunstein argues, ‘[s]ome Heroes present themselves as Burkeans, who
are genuinely committed to incrementalism, and who reject the largest theories,
but who are nonetheless willing to wield judicial power so as to invalidate
legislation.’ Sunstein might well be describing Chan Sek Keong – the Burkean
Hero and Towering Judge of Singapore.

[10] In his 2013
article, Sunstein uses the term ‘Burkean’ to describe judges who ‘favor small,
cautious steps, building incrementally on the decisions and practices of the
past.’ Cass R Sunstein, ‘Constitutional Personae’ [2013] 1 Supreme Court Review 433. These same judges are described as
‘Minimalists’ in his 2015 book. Cass R Sunstein, Constitutional Personae:
Heroes, Soldiers, Minimalists, and Mutes (2015).

One Response

[…] 1973. Second, judges typically used Chile’s formalistic civil law to benefit that regime. In her post, Jaclyn Neo reminded us that towering judges are more likely to appear in common law jurisdictions […]

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